Roberts v The Manning Community News Pty Ltd & Anor

District Court of NSW|2020-04-09

Solicitors: Plaintiff: Bromhead Legal Defendant: Wotton + Kearney File Number(s): 2019/385013 Publication restriction: None

The plaintiff sends a Concerns Notice dated 22 May 2019

On 22 May 2019, before either proceedings were commenced the plaintiff sent a Concerns Notice to the defendant concerning the following eight publications, one of which was to become the first matter complained of in the first proceedings and two of which were to become the two matters complained of in the second proceedings: 1. An article published on or about 10 February 2018 entitled "Trapped in Wonderland". 2. An article published on or about 26 July 2018, entitled "Land Council Revolt - Roberts asked to go". It should be noted that this is the first matter complained of in the first proceedings, as is evident from the heading. There is no reference to the online publication which is the second matter complained of but, given the similarity, I assume that this is an oversight. 3. An article published on or about 20 September 2018, entitled "Cr Len Roberts Assault Update". 4. An article published on or about 8 December 2018, entitled "Councillor Len Roberts assault charges adjourned". As is confirmed in the body of this judgment, this is now also the first matter complained of in the second proceedings. 5. An article published on or about 3 January 2019, entitled "Response to the community advertising campaign". 6. An article published on or about 28 February 2019, entitled "Community - a force to be reckoned with!". 7. An article published on or about 15 March 2019, entitled "Cr Len Roberts Found Guilty of Assault". As is confirmed in the body of this judgment, this is now also the second matter complained of in the second proceedings. 8. An article published on or about 27 April 2019, entitled "Lennard Roberts has his day in court".
The context in which these publications appear are: 1. The opening words of the letter of 22 May 2019 are that this letter "constitutes a concerns notice for the purposes of the Defamation Act 2005 (NSW)". 2. The list of articles set out in the previous paragraph are put before the defendant under the heading "Matters Complained Of" although, as I understand the plaintiff's case, these articles are intended to be by way of particulars of aggravation going to damages only. This is not the first time that a problem of this kind has occurred (Habib at [141], [145], [181] and [187]), and it is unlikely to be the last. 3. To add to the confusion, these publications, compendiously described as "the Articles", are asserted to give rise to "Defamatory Imputations" as a group (which is impermissible). The falsity of each of these asserted group imputations is then discussed as length, with reference to one or more of the articles in the list. This includes complaints apparently unrelated to the defamation claim, namely that these publications were also "offensive" and "racist". 4. There is then a statement that "they" (namely the articles as a whole) "constitute a prolonged and malicious campaign" which has been aggravated by the defendant's conduct, one aspect of which aggravation is that the Articles are published "as part of a long-running campaign". 5. Under a heading "Action Required", the letter stated that "our client would prefer to resolve his concerns without recourse to litigation and sought removal of the articles, an apology and "payment of an amount acceptable to him" or, if that sum could not be agreed, an amount to be determined by an arbitrator or the court".
The proposal set out in the Concerns Notice was not adopted. This led to the commencement of the first proceedings on 22 July 2019.

The first proceedings are commenced on 22 July 2019

The first defamation claim (District Court proceedings 2019/226972 - hereafter "the first proceedings") was commenced on 22 July 2019. In this pleading, as amended on 13 September 2019 (hereafter "the statement of claim in the first proceedings"), the plaintiff brought two claims for defamation against the defendant, arising from the following two largely identical publications: 1. A publication on the front page and page 5 of the Manning Community Newspaper headed "Land Council Revolt - Roberts asked to go" (dated "July/August" of 2018 according to paragraph 4 of the statement of claim); and 2. A publication on the MCN website headed "Land Council Revolt - Roberts asked to go" (first published on 26 July 2018, according to paragraph 6).
The amendments made to this pleading were only to the imputations, and it should be noted that, at all relevant times the plaintiff included a claim for particulars of aggravated damages. This included particulars of republication of the matters by others on social media, failure to apologise, extravagant language and other commonly ascribed particulars, but did not include particulars of other publications by the defendant, or any reference anywhere at all to those of the other publications listed in the Concerns Notice. The plaintiff did, however, reserve the right to provide further particulars of aggravation.
It was in these circumstances that on 15 November 2019, in the first proceedings, the plaintiff provided, as further particulars of this head of damages, a list of 6 publications and a claim of a malicious campaign against the plaintiff over a period of months by the publication of articles which were false and were additionally published without any attempt to contact the plaintiff to verify them.
This is not the same list as before, in that: 1. There is no reference to the article dated 10 February 2018 entitled "Trapped in Wonderland" (which was the first publication in the list supplied in the Concerns Notice dated 22 May 2019). 2. There is no reference to the second matter complained of in the first proceedings, namely the online publication dated 26 July 2018). Again, I note that the Concerns Notice dated 22 May 2019 failed to refer to the "July/August 2018" article in the list of 8 publications the subject of that Concerns Notice, and add that it does not appear in this list of 6 items either. 3. The remaining publications in the 22 May list, including the two publications which would become the second matter complained of, all appear in this list. 4. However, there is a separate list of 8 publications (see page 40 of the Court Bundle), identical to the list sent on 22 May 2019.
In the first action, a defence was filed and, on 19 November 2019, the parties attended a mediation which was unsuccessful.

The second proceedings are commenced on 6 December 2019

On 3 December 2019, the plaintiff's solicitors sent a bundle of correspondence to the defendant under cover of a letter purporting to be a Further Concerns Notice. Confusingly, they sent what appears to have been a draft document (in PDF and Word format) not dated 3 December but dated 24 November 2019, the terms of which were similar but at variance (in relation to dates and other issues) with the letter of 3 December 2019. There was also a bundle of documents and a draft statement of claim, which set out claims based on the two publications in what became the second set of proceedings, when this second claim was filed on 6 December 2019.
The solicitors for the defendant immediately raised the s 23 issue in their reply letter dated 3 December 2019. The reply they received later that same day was that the plaintiff "does not require consent under s 23, and there is no need to so apply".
On 9 December 2019, the solicitors for the defendant wrote complaining that the Further Concerns Notice raised "a number of issues". I will not list them all, but they include the inconsistencies in the correspondence set out above, a demand for removal of articles which had been removed some time ago, the shortness of time for consideration (namely three days), a restatement of their position concerning s 23 and a request for information concerning the Further Concerns Notice. The response was to send the statement of claim which had been filed on 6 December 2019.
The result is that these two additional publications remained pleaded as particulars of aggravation in the first publication as well. In fact, although it was not raised with the court, it looks as though a similar claim is made in the first proceedings, in that aggravated damages for publication of the matters complained of in the second proceedings remains particularised as an aggravating factor in the first proceedings.
This situation did not change until 5 February 2020, when the solicitors for the defendant wrote, for the third time, complaining that the issue of leave under s 23 must be resolved, or there would be an application to strike out the claim. The response, sent that same day, was that this could be an issue pleaded in the defence, and that if the defendant proposed to seek a strike out, the plaintiff would agree to the timetable proposed for this course. However, the author of this letter added: "We no longer press particulars of aggravated damage 1(b) and (c) of our letter dated 15 November 2019."
Those paragraphs are the ones referring to the matters complained of in the second proceedings. This means that, for the period 6 December 2019 to 5 February 2020, the matters complained of were relied upon for a claim for aggravated damages in the first proceedings also formed the totality of the claim for the second proceedings.
Even after reliance on these two publications as part of the aggravated damages claim was abandoned on 5 February 2020, the plaintiff continued to assert that leave was not required. It was not until 28 February 2020 that the plaintiff changed position to claim that if leave was necessary (which the plaintiff still says is not the case) then leave should be granted nunc pro tunc.
There were other steps that the plaintiff could have taken to avoid this application. Mr Potter agrees that, if the publications the subject of the second proceedings had been added to, or consolidated with, the first proceedings, there could be no complaint. (I also note that I raised with Mr Potter whether the fact that the statement of claim could be considered a Concerns Notice (Mohareb v Booth [2020] NSWCA 49), meant that the statement of claim could itself be considered as a third Concerns Notice. Both parties eschewed any such argument, so I need not consider it further.)
As is set out in more detail below, the purpose of s 23 is to prevent multiple proceedings. The first issue for consideration is whether these proceedings are as different from each other as Ms Amato claims. This requires examination of the substance of the matters complained of, in terms of their imputations.

The asserted similarities and imputations pleaded: the first proceedings

As Kay J emphasized in Buckley v Herald and Weekly Times Pty Ltd (No 2) [20008] VSC 475 at [15], the test postulated by s 23 is not one of similarity or "likeness" between the imputations pleaded. The relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. The imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue.
The first matter complained of describes a "revolt" at the Karuah Aboriginal Land Council meeting which follows the discovery of a series of asserted misdeeds of the plaintiff. Major features (with their own headings) after the outlining of this "revolt" by "40 angry members", each with their own headings, are "allegedly dodgy credit cards", the "curious" heritage trail to be used as a tourist attraction, the plaintiff's association with a developer over land sold "for camping?", the plaintiff's "debatable" Aboriginal heritage and "colourful history", followed by the notation at the end that the article authors "haven't begun the chapter" of another issue involving a Mr Handford.
The broad range of these allegations can be seen from the imputations pleaded for each of these identical publications: 1. Len Roberts appointed himself CEO of the Karuah Local Aboriginal Land Council in 2016 and then did such an appalling job that over 40 of its members called a meeting for the express purpose of removing him from that position (entire first matter complained of and in particular lines 1-10). 2. Len Roberts is a liar in that he claimed his position of CEO of the Karuah Local Aboriginal Land Council was an honorary one but in reality he took a $12,000 annual payment, corporate credit card and brand new company car (entire first matter complained of and in particular lines 11-20). 3. Len Roberts rorted his position as the honorary CEO of the Karuah Local Aboriginal Land Council by taking benefits to which he was not entitled and then attempted to sack the Land Council employee who was investigating the wrongdoing in order to cover it up (entire first matter complained of and in particular lines 11-26). 4. Len Roberts, as the self-appointed honorary CEO of the Karuah Local Aboriginal Land Council, arbitrarily exercised his powers in deciding to move the Land Council Head Quarters to an office in Tea Gardens without any consultation (entire first matter complained of and in particular lines 1-10 and 11). 5. Len Roberts, as CEO of the Karuah Local Aboriginal Land Council, stole from the Land Council by using its funds to buy trucks for his own personal use (entire first matter complained of and in particular lines 3 and 25). 6. Len Roberts, as CEO of the Karuah Local Aboriginal Land Council, stole two trucks that belonged to the Land Council (entire first matter complained of and in particular lines 3 and 26). 7. Len Roberts, CEO of the Karuah Local Aboriginal Land Council, claims to be Aboriginal when he is not (entire first matter complained of and in particular lines 37-38 and 43). 8. Len Roberts, CEO of the Karuah Local Aboriginal Land Council, falsely promoted an area on Bulahdelah Mountain as one of Aboriginal cultural significance (entire first matter complained of and in particular lines 3, 27-30). 9. Len Roberts, CEO of the Karuah Local Aboriginal Land Council, abused his position by selling valuable Land Council land near the Hawks Nest Golf Club to developers without any consultation with the community or the Lands Council (entire first matter complained of and in particular lines 3, 27-36). 10. Len Roberts, CEO of the Karuah Local Aboriginal Land Council, is a hypocrite in that he sold valuable Aboriginal land to Phillip Dong Fang Lee, whose developments cause environmental degradation (entire first matter complained of and in particular lines 3, 27-36). 11. Len Roberts, CEO of the Karuah Local Aboriginal Land Council, defrauded the Land Council in that he sold off millions of dollars' worth of its land near the Hawks Nest Golf Club and then kept the proceeds of sale (entire first matter complained of and in particular lines 3, 27-36). 12. In 2005, Len Roberts, Great Lakes Councillor, attempted to illegally procure the outcome of a mayoral election in his favour (entire first matter complained of and in particular line 46). 13. Len Roberts, candidate in the 2017 Mid Coast Council Elections, lied to the electorate in that he failed to disclose to them his National Party connections (entire first matter complained of and in particular lines 47-49).
While I am conscious that caution should be exercised in terms of arriving at conclusions based on imputations rather than content, the range and scope of these imputations readily demonstrate that the allegations were as wide-ranging as they were serious.

The imputations pleaded in the second proceedings

As the headline, "Councillor Len Roberts Assault Charges Adjourned" demonstrates, this is essentially a report of court proceedings followed by information about the person the plaintiff had been accused of driving into and assaulting, including the attempted removal by the plaintiff of items from his office.
The narrower range of these publications is also demonstrated both by its contents and by the imputations pleaded. The imputations common to the first and second matters complained of are: 1. Len Roberts attempted to steal keys and files from the Land Council after he was asked to resign as CEO of that organisation (entire first matter complained of and in particular lines 6-9 of Schedule B). 2. Len Roberts, CEO of the Karuah Land Council, intentionally drove his car into a Land Council employee, Zac Schmierer, because he was trying to stop Mr Roberts stealing keys and files from the Land Council (entire first matter complained of and in particular lines 6-14 of Schedule B). 3. Len Roberts, CEO of the Karuah Land Council, assaulted Land Council employee, Zac Schmierer so badly that he received hospital treatment (entire first matter complained of and in particular lines 6-14 of Schedule B). 4. Len Roberts, a Councillor and CEO of the Karuah Land Council, broke into the offices of the Karuah Land Council, and stole files and records (entire first matter complained of and in particular lines 15-17 of Schedule B). 5. Len Roberts, as CEO of the Karuah Land Council, fired Zac Schmierer from the Land Council to stop him investigating Mr Roberts for corruption (entire first matter complained of and in particular lines 18-20 of Schedule B).
The heading "Cr Len Roberts Found Guilty of Assault", contents and imputations (apart from the first imputation) pleaded for each of the third and fourth publications similarly demonstrate a more restricted topic, namely the conviction of the plaintiff for assault: 1. Len Roberts was sacked from his position as CEO of the Karuah Aboriginal Land Council (entire fourth matter complained of and in particular lines 6-8 of Schedule D). 2. Len Roberts, a Councillor and former CEO of the Karuah Land Council, is a criminal in that on 24 July 2018, he broke into the offices of the Karuah Local Aboriginal Land Council (entire fourth matter complained of and in particular lines 13-18 of Schedule D). 3. Len Roberts, former CEO of the Karuah Land Council, is a criminal in that on 24 July 2018, he stole documents belonging to the Land Council (entire fourth matter complained of and in particular lines 13-16 of Schedule D). 4. Len Roberts, former CEO of the Karuah Land Council, is a criminal in that on 24 July 2018, he assaulted Land Council employee Zac Schmierer by intentionally driving his car into him (entire fourth matter complained of and in particular lines 13-18 of Schedule D). 5. Len Roberts, former CEO of the Karuah Land Council, was found by the Magistrate hearing his assault trial to be an unreliable witness (entire fourth matter complained of and in particular lines 21-24 of Schedule D). 6. Len Roberts, when CEO of the Karuah Land Council, sacked employee Zac Schmierer to stop him investigating allegations of corruption against Mr Roberts (entire fourth matter complained of and in particular lines 25-27 of Schedule D).
It should be noted, when considering the warnings of Kay J about paying too much attention to imputations, that, even when the imputation was the cause of action in New South Wales, s 9(3) of the Defamation Act 1974 (NSW) still referred to "matter" and not to "imputation". The clear aim is to discourage the bringing of further proceedings over the same (or "like") publication, as opposed to publications conveying similar imputations.

The relevant legislation

Section 9(3) of the repealed Defamation Act 1974 (NSW) provided: "(3) Where a person has brought proceedings (whether in New South Wales or elsewhere) for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."
In addition, s 9(6) of the repealed legislation stated: "(6) This section does not affect: (a) any law or practice relating to special verdicts, or (b) the powers of any court in case of vexatious proceedings or abuse of process."
Section 23 of the uniform legislation provides: "23 Leave required for further proceedings in relation to publication of same defamatory matter If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."
Examination of the applicability of s 23 in this application requires consideration of the following key words: 1. "…has brought defamation proceedings for damages…"; 2. "…in relation to the publication of any matter…" 3. "…cannot bring further defamation proceedings for damages…"; 4. "…same or like matter…"; and 5. "…except with the leave of the court".
As s 23 is based on s 9(3), it is helpful to start with a consideration of the relevant principles applied in relation to the repealed legislation.

The situation under the repealed legislation

Ms Amato and Mr Senior point out, in their written submissions (at paragraphs 18 - 20), that s 23 largely reproduces s 9(3) of the Defamation Act 1974 (NSW). As McColl JA observed in Carey v Australian Broadcasting Corporation [2010] NSWCA 176 ("Carey") at [67], the Report on Defamation (New South Wales Law Reform Commission Report 11) drafted and recommended the adoption of the 1974 Act, and section 9(3) was based on its recommendations, which were as follows: "52. We, think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter. The law as to res judicata is not fitted to impose the appropriate restraint, either under the present rules as to causes of action or under the solution which we propose. Thus, if defamatory matter is published in a newspaper, judgment in an action for publication to residents of Sydney would not bar a second action for publication to residents of Newcastle. The second action might be stayed as vexatious, but it is perhaps a strong use of that power to stay proceedings on an undoubted cause of action which has not been litigated. We do not, however, think that second action should automatically be barred: the first action might have been for what was a very limited dissemination and the second for a general dissemination to the public, perhaps not occurring until after the first action was brought. We propose that a second action should not be brought except by leave of the court. 53. We think that the restriction proposed in paragraph 52 should have effect whether the first action was brought in New South Wales or elsewhere… If an action is brought in another State… we do not think that the same plaintiff should have an uncontrolled liberty to sue the same defendant in respect of the publication of the same journal in New South Wales…"
The purpose of s 9(3) of the 1974 Act, according to paragraph 51 of the LRC Report, was thus to remedy the "multiplicity of causes of action which may attend the dissemination of defamatory matter". This is why, prior to the uniform legislation where the imputation was the cause of action, s 9(3) of the 1974 Act, like s 23 of the uniform legislation, directed its remedy to the contents.
In Habib, the plaintiff had sued Nationwide News Pty Ltd for a newspaper article and three republications by third parties (radio stations independent of Nationwide News Pty Ltd). After the s 7A jury found against the plaintiff and held that there were no defamatory imputations, the plaintiff commenced proceedings against the radio stations, not Nationwide News Pty Ltd, and additionally agreed to the entry of judgment against him in the Supreme Court. These actions were struck out as an abuse of process on the basis that the three republications were sued on as matters complained of. The judgment was set aside, essentially because the Court of Appeal considered the three republications were sued upon for damages only, and not as republications for the purposes of liability, contrary to the assertions of the publisher on appeal.
Significantly for the purposes of this application, McColl JA noted that, while the subsequent action brought by the plaintiff in the District Court was against parties who had not been sued for defamation in the Supreme Court, the plaintiff nevertheless "could, with leave, have proceeded against Nationwide again, in respect of the same or any other publication of the same or like matter: s 9(3), 1974 Act" (at [183]). In other words, the plaintiff could have done exactly what the plaintiff in these proceedings had done, even though the plaintiff had actually had a verdict on the imputations pleaded entered against him in the Supreme Court.
Nor was prejudice of any assistance to the new defendants. The fact that the new defendants in the District Court had, as a result of the very considerable delays caused by the plaintiff's slow resolution of the Supreme Court proceedings, lost their entitlement to bring a claim against Nationwide News Pty Ltd (which the first instance judge considered to be relevant, as s 9(6) would still permit a stay where abuse of process was involved) was of no moment, in the opinion of the Court of Appeal, as if the Supreme Court proceedings as to damages only (as is the case here), as where there is a balancing exercise between the right to vindicate reputation and to seek contribution from Nationwide, the former should be favoured (per McColl JA at [204]).

Are the publications "the same or like"?

Mr Potter claims that the matters "are the same as the matters complained of in these Proceedings" and that therefore "the question of whether the Articles and the matters complained of are "like matters" does not arise: cf Buckley v Herald & Weekly Times (No 2) [2008] VSC 475 at [12] - [15]" (written submissions, paragraph 14).
Whether the publications are "the same or like" will turn on the facts of the case. This requires a close examination of the content of each of the articles.
In Buckley v Herald & Weekly Times Pty Ltd (No 2), the decision referred to by Mr Potter, the plaintiff commenced two sets of defamation proceedings against the publisher of the Herald Sun newspaper and a journalist in relation to articles that the defendants contended were the same or like matter. The defendants sought an order that the proceedings be stayed on the basis that leave of the court had not been sought pursuant to s 23 of the Act (Vic).
Kay J found that the content, focus and subject matter of the matter complained of in the second proceedings was not "like" the articles in the first proceedings because "a real and substantial similarity" must be established. His Honour went on to explain the relevant test to be applied in determining whether matter is "the same or like matter" (at [14]-[15]): "14 The construction of s 23, and the approach to the question which I must decide, is assisted by reference to the underlying purpose served by s 23. As counsel for both parties have pointed out, the obvious purpose of s 23 is to protect a defendant from being exposed to a multiplicity of proceedings arising out of identical, or substantially similar, publications. In the field of defamation law, the same or similar subject matter may become the subject of a number of different and separate causes of action which, theoretically, may each form the basis of separate proceedings. This consideration was highlighted by the New South Wales Law Reform Commission in its Report on Defamation dated 20 April 1971. As the Commission pointed out in that report, each publication of the same book, leaflet or newspaper gives rise to a multitude of causes of action, each time such a document is distributed to a separate recipient. Further, the same publication may give rise to two or more separate causes of action, where the publication is the basis of both false and true innuendos. It was those considerations which caused the Law Reform Commission to propose, as a solution, that a person should not have an uncontrolled liberty to sue a defendant, whom he has already sued, in respect of the same report, article, speech or other matter. The Commission proposed that a second action, in respect of the same report or document, should not be brought except by leave to the Court. That proposal was adopted in s 9(3) of the Defamation Act 1974 (New South Wales). That provision is in identical terms to s 23 of the New South Wales Defamation Act 2005 (New South Wales), which, in turn, is identical to s 23 of the Victorian Act. 15 That background to the enactment of s 23 is relevant, in that it reinforces my view that, in order that there be a relevant "likeness" for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceedings, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications. Rather, the plain terms of the section, its underlying purpose, and its history, all lead to the same conclusion, namely, that in order that the publication in the instant proceeding be considered to be "like" the publication sued on in an earlier proceeding, there must be a real and substantial similarity between the two sets of publications."
What is "a real and substantial similarity"? A good example of the application of these principles occurred in Reynolds v Nationwide News Pty Ltd [2012] VSC 226. The first statement of claim related to articles published on 10 and 22 December 2011 while the second related to a publication made in between these dates (namely on 12 December 2011). All the articles related to the conduct of the plaintiff while she was employed in the Office of Public Integrity.
Beach J noted the similarity of the subject matter, in terms of the plaintiff's activities in the course of her employment, but went on to find that there was no real or substantial similarity because of the different nature of the allegations. Citing with approval the observations of Kay J as set out above, Beach J held: "25 I am not satisfied that there is a real and substantial similarity between the first and second articles on the one hand and the second proceeding article on the other hand. The second proceeding article is significantly different from the first and second articles in its allegations concerning covert tactics used by the plaintiff and the making of false claims of poor work performance. The first and second articles are, on the other hand, concerned with allegations concerning bullying, intimidation and threats by the plaintiff. In the circumstances, the defendants' application to strike out the writ and statement of claim in the second proceeding must fail."
Similarly, in Rastogi v Nolan [2010] NSWSC 735, in the course of holding that despite some commonality (as to the plaintiff's conduct as a medical practitioner), Simpson J took into account a wide range of factors, including the difference in imputations, saying (at [5] and [7]): "5 There is a certain amount of commonality to this extent, and this extent only, that the publication alleged in the earlier numbered Statement of Claim concerns the plaintiff in his practice as a medical practitioner, as do the publications the subject of the second Statement of Claim: however, the content of the publications is different. The imputations said to have been conveyed are not identical. … 7 Obviously what is "like" matter is a question of degree and evaluation. Here, the medium in which the publications are said to have been made is different, the dates of two of the publications the subject of the second Statement of Claim are different, the content of the publications is different and the imputations complained of are different."
Are the similarities between the matter sued on in the first and second proceedings, in a real sense, "significant and substantial" in the manner advocated by Kay J and Beach J?
In each of the above judgments, the publications in question had a common thread in relation to the plaintiff's conduct of professional duties. However, the differences between the subject matter of the publications in each statement of claim were significant.
The same is the case here. As the imputations and subheadings in the publications demonstrate, the first proceedings relate to the conduct of the plaintiff in his position as CEO of the Karuah Local Aboriginal Council over a series of specific instances as well as challenging his claim to be aboriginal. The second proceedings relate to court proceedings against the plaintiff for assault of a staff member whom he had sacked. The only linking factor is that this young man is asserted to have been sacked to stop him investigating the plaintiff. Different defences (a factor relevant in arguments over whether imputations differ in substance) are clearly likely to be pleaded.
Mr Potter places great weight on the fact that the publications were relied upon as going to aggravated damages in the first publication. However, they were relied upon as evidence that the defendant was embarking on a campaign of denigrating the plaintiff, and not as a claim that the same allegations were being made over and over. The fact that a defendant makes allegations of a wide variety of wrongful acts may be evidence of conduct warranting an award of aggravated damages whether the allegations were similar or were completely different. The asserted width of the term "in relation to" (written submissions, paragraph 15) is of no assistance to the defendant if the articles do not have what Kay J calls "a real and substantial similarity". The intention of s 23 is to prevent multiple actions over the same matter, not to render a plaintiff libel-proof.
Conformably with the observations of Kay J and Beach J as set out above, I am satisfied that, while there is a degree of commonality in the two publications, they are certainly not the "same" and that the degree of commonality is insufficient for the two publications to be described as "like". In those circumstances, no leave is required.
What is meant by "the matter" in s 23?
The next issue for consideration is Mr Potter's main argument, namely that the reliance on the publications in the second proceedings as a basis for aggravated damages in the first proceedings makes them a "matter".
When considering "matter" for the purposes of s 23, ss 4 and 8 of the uniform legislation should be consulted. Section 4 provides the following definition of "matter": ""matter" includes - (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and (c) a letter, note or other writing, and (d) a picture, gesture or oral utterance, and (e) any other thing by means of which something may be communicated to a person."
This is a very broad definition, designed to take into account some of the more unusual matters complained of (such as the placement of the plaintiff's statue in the "famous murderers" section of a waxworks museum: Monson v Tussauds Ltd; Monson v Louis Tussaud [1894] 1 QB 671; [1891-4] All ER Rep 1051; (1894) 58 JP 524; (1894) 63 LJQB 454; (1894) 70 LT 335; (1894) 9 R 177; (1894) 10 TLR 227).
As s 8 confirms, the publication of "defamatory matter" constitutes the cause of action.
Mr Potter's construction of the word "matter" in s 23 enlarges the concept of "matter" as defined in s 4 to include not only the matter complained of, but also other publications pleaded in support of aggravated damages.
The distinction between defamatory matter (albeit in the form of the imputation that was the cause of action) and publications pleaded as aggravated damages is discussed at length in Habib and wholly inconsistent with the approach taken in other judgments. If publications relied upon for aggravated damages amounted to matter, then the observations of the Court of Appeal in Habib that the plaintiff could still have sued the same publisher (Nationwide News Pty Ltd) in the District Court, despite the entry of judgment against him in the Supreme Court, would be wrong.
Mr Potter is on surer ground with his submission that the words "in relation to" in s 23 enable the court to read "the matter" as extending beyond the actual defamatory publication (submissions, paragraphs 15 - 17). This phrase did not appear in the 1974 legislation. He submits that the phrase "in relation to" is one of "broad import" (O'Grady v Northern Queensland Co (1990) 169 CLR 356 at 374; see also Travelex v Federal Commissioner of Taxation (2010) 241 CLR 510 at [25]). He goes on to submit that the underlying purpose (defined as being the "evil" identified by Sackville AJA in Carey at [124]) means that s 23 should be interpreted liberally in order to avoid double dipping of the "same damages" kind he says the plaintiff is indulging in here (submissions at paragraph 23). As s 23 just says "matter" (not "defamatory matter") it would not be necessary even to have a ruling as to whether or not the publication was defamatory. The "same damages" argument is in any event the work done by s 38(1)(c) - (e) of the uniform legislation.
I do not agree that Sackville AJA's observations are the correct test of the underlying purpose. The clear purpose is that which was identified by McColl JA in Habib at [114], namely that in the world of technology, where the potential for multiple publications is so high, the court acknowledges that the likelihood of multiple publication, and thus multiple actions, is high.
The words "in relation to" relate to "matter", not to damages. The delineation between publication and a claim for aggravated damages cannot be blurred in this fashion. "Same damage" is a matter for determination in a s 5(1)(c) contribution context (s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)), as is noted in Habib at [205].
Accordingly, leave is not required.
In the event that I have erred in this finding, I set out below my reasons for finding that I would have held that the abandonment of that portion of the particulars of aggravated damages based on the two publications contained in the second proceedings would also have had the result that there was no longer any need for leave.

The abandonment of the particulars of aggravation for the matters in the second proceedings

The plaintiff gave notice on 28 February 2020 that he would no longer rely upon the two publications set out in the second proceedings for his claim for aggravated damages in the first proceedings. Ms Amato submits that, in those circumstances, if she is wrong about every other argument to date, that is the end of the matter.
Mr Potter submits that this does not resolve the problem because compliance with s 23 has to be assessed at the commencement of the proceedings, and not at some later time, citing Waterhouse v The Age Company [2011] NSWSC 159 at [68]: "68 Further, in my opinion, s 23 operates so as to render invalid ab initio the bringing of the further defamation proceedings without the leave of the court. The prohibition is unqualified. There is no power to grant leave retrospectively (Carey v ABC [2010] NSWSC 709, par 25). There is no provision by which the invalidity of the further defamation proceedings may be subsequently remedied, for example, by removal of the relevant person/defendant from either of the defamation proceedings under consideration. It follows that these proceedings as against Feneley, Rule, and Silvester were invalid at the time of their commencement by the filing of the statement of claim on 15 December 2010, with the result that they were entitled to an order for dismissal from the outset."
In other words, the pleading, once drafted, can never be amended and is invalid without leave, because it is imperfect ab initio.
Ms Amato submits that Waterhouse is not authority for this proposition, and that it should be treated with caution by reason of its wrong finding that leave could not be granted nunc pro tunc (at [23]), an argument rejected in the appeal from the first instance judgment of McCallum J in Carey v Australian Broadcasting Corporation [2010] NSWSC 709 (see [25]).
There is fortunately a much simpler way I can resolve this issue. As I noted in my summary of the contents of the first proceedings, there is no averment of such a claim. It is referred to in the Concerns Notice (which is, I note in passing, inadmissible: see s 19), but as a publication of concern, not as a particular of aggravated damage. When proceedings were commenced, there was no pleading to contradict this. The letter of particulars sent on 15 November 2019 is the first reference to it and the withdrawing of this claim also occurred by letter. To regard two letters sent three months apart as forming some irretrievable step in the proceedings is contrary not only to rules of statutory interpretation but to the legislative intent of s 23.

Conclusions concerning the need for leave under s 23

All of the defendants' arguments have failed but, if I have erred and leave is required, should it be granted?
If leave is required, should it be granted?
In the event that I have erred in holding that leave is not required, I set out the reasons why leave, if required, should be granted.
The bases upon which the defendants argue leave should not be granted may be summarised as follows: 1. The grant would be inconsistent with the overriding just, quick and cheap principles in ss 56 - 64 of the Civil Procedure Act 2005 (NSW) by reason of the plaintiff's delay in failing to commence proceedings until just two days before the limitation period expired despite giving a Concerns Notice six months earlier. 2. The plaintiff's failure to explain the delay (AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175) in commencement of the action and his unsatisfactory conduct of the proceedings generally is unacceptable conduct from a party seeking an indulgence such as the grant of leave. 3. The plea of aggravated damages in the first proceedings still remains on foot and there is still a significant overlap in the damages sought in both proceedings. 4. The plaintiff's actions are considered tactical decisions, including the initial refusal to seek leave, and should be viewed with suspicion accordingly. 5. There is "significant prejudice" (submissions, paragraph 27) to the defendants from the delay as the need for the competing applications adds extra strain for what is already costly litigation. This is all the more the case for the second defendant, who is an individual. 6. There is no injustice or prejudice to the plaintiff if he loses causes of action because of tactical decisions made by experienced lawyers. 7. If leave is granted, the defendants "are vexed with two proceedings from the same plaintiff on related subject matter and damages" (submissions, paragraph 28). 8. The "delays since December 2019" (submissions, paragraph 28) have added to the costs as well as to the strains caused to the defendants.
Mr Potter draws my attention to the observations by McColl JA in Carey at [93], where her Honour approved Smart AJ's statement in Macquarie Bank Ltd v Berg [2002] NSWSC 254 at [26] that a court should only grant leave nunc pro tunc in a proper case, giving an example of such a case as being ignorance of the need to seek leave. Mr Potter submitted that this judgment demonstrates the criterion for such applications.
In Macquarie Bank Ltd v Berg, the plaintiff commenced proceedings for defamation for online publications posted in the United States, but did not prosecute them for a year. The Supreme Court Registry advised the plaintiff that if certain action was not taken, the proceedings would be struck out. Instead of taking that action, the plaintiff's solicitors filed a second statement of claim which included particulars of downloading a further publication in New South Wales. The plaintiff's solicitors acknowledged they were unaware of s 9(3) but further said that the Supreme Court registry was "adamant" (at [14]) that this step should be taken. Smart AJ added (at [15]) that he did not consider this opinion to be incorrect.
This case turns on its own facts and should be treated with caution. McColl JA was not limiting the grant of leave nunc pro tunc to such cases. As is set out above, her Honour took a much more liberal view of s 9(3) in Habib, observing that if the plaintiff had chosen to sue Nationwide News Pty Ltd as a publisher in the subsequent proceedings in the District Court (as opposed to suing the radio broadcasters) leave would have been granted. This was despite a far greater delay by the plaintiff, who delayed determining this issue in the District Court for two years between the s 7A jury finding and the first instance judgment, with the result that the radio broadcasters lost their entitlement to claim contribution from Nationwide News Pty Ltd pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act. McColl JA took a generous approach to the entitlement of a plaintiff to sue more than once, stating: "114 The 1974 Act expressly contemplated that a plaintiff might bring more than one defamation action against the same defendant "in respect of the same or any other publication of the same or like matter", subject to obtaining the leave of the court in which the further proceedings were to be brought: s 9(3)."

Is there any other basis for summary dismissal of these proceedings as an abuse of process?

The checklist of factors set out at (a) - (h) above calls in aid upon a number of bases commonly referred to in applications for summary dismissal, including complaints of delay, tactical decisions and significant prejudice. The reliance upon these factors appears to hint at a complaint closer to proportionality and abuse of process arguments than to the discretion to grant leave under s 23. If so, I should address the issue of the purpose of s 23.
The prospect of multiple defamation actions is daunting to any litigant. However, the purpose of s 23 is not to make a "limit one per customer" rule in relation to defamation actions, but to prevent a specifically identifiable wrongdoing, namely bringing more than one action over a publication that was effectively 'the same'. That was a relatively easy issue to determine before online publication made multiple publication almost inevitable and easy access by search engines to similar publications such a difficulty, in terms of appropriate legislative provisions. (Like so many provisions in the uniform legislation, s 23 was drafted at a time when the full impact of online technology was not appreciated; in fact, nearly all the caselaw on s 23 and its predecessors covers the period of the last two decades.)
Although the nature of online publication exacerbates the problem, courts have long been aware that the nature of mass publication is that many defamations may be published or republished in many jurisdictions. This is not only the case now, but was also a significant problem in the nineteenth century, when Randolph Hearst's sensation-based "yellow journalism" resulted in multiple publications of this kind being made across the length and breadth of the country and indeed the world. An example of this may be seen in the case of Mrs Butler, falsely accused, in a series of Hearst publications across the United States, of being found in jail, heroin-addicted and her famous beauty gone, after conviction for stealing to support her drug habit. Over a period of six years, she brought a total of 55 libel actions against Hearst Newspapers (winning all but one) to vindicate her name: Butler v News-Leader Co, 51 SE 213 (Va 1905); Butler v Evening-Leader Co, 134 F 994 (D CT 1905); Butler v Carter & Russell Publications Co, 135 F 69 5th Cir 1905; Every Evening Printing Co v Butler 144 F 916 (3d Cir 1906).
Mrs Butler (better known to history as the rodeo performer Annie Oakley than as a highly successful libel litigant) could not be satisfied with bringing one action and allowing the multiplicity of subsequent attacks upon her reputation to flourish. The courts hearing her many libel actions did note the similarity of the articles but the same principles as those explained in the New South Wales Law Reform Commission Report 11 at 52 and 53 (set out earlier in this judgment) were applied; the concern then was the "Sydney and Newcastle" analogy that the Law Reform Commission referred to; the tyranny of distance was the significant factor in those days, rather than the ubiquity of the internet.
The same underlying principle is to be found in the uniform legislation which, like the legislation it replaces, "expressly contemplated that a plaintiff might bring more than one defamation action against the same defendant" (Habib at [114] per McColl JA). Where there are multiple publications brought against the same defendant, s 23 operates as a gate-keeper to permit the court to prevent articles which are shown to have "a real and substantial similarity" (to quote Kay J Buckley v Herald & Weekly Times Pty Ltd at [15]) from being sued on more than once. However, the extent of similarity is a high test, and "same" must be given full meaning.
Finally, even if Mr Potter had been successful in arguing that the extent of similarity was sufficient for leave to be required, looking beyond s 23 and at general principles in relation to abuse of process (UBS AG v Tyne), the refusal of leave for publications as different as those the subject of this application would be contrary to the legislative purpose for which s 23 was created.

Costs

The plaintiff has been entirely successful in a difficult and complex application, and should be entitled to a costs order.
The parties have liberty to bring in Short Minutes of Order for any further timetabling issues. I have given a provisional listing for this on 18 June 2020, which can be vacated by the parties with required.
I thank Mr Potter and Ms Amato and their juniors for their careful written submissions.

Orders 1. Defendants' application for summary dismissal of these proceedings dismissed with costs, with liberty to apply. 2. Matter stood over to the Defamation List on Thursday 18 June 2020 for the parties to hand up a timetable for the future conduct of these proceedings.

Amendments 17 June 2020 - Paragraph 6 - Insertion of a publication as sub-paragraph (f). Paragraph 21 - Deletion of the word "this" after the reference to Mohareb v Booth [2020] NSWCA 49. Paragraph 36 - Insertion of a comma after the words "point out". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2020

Defamation Act 1974(NSW)

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Judgment (16 paragraphs)

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